New legislation to rein in ORNGE would block Ontario’s ombudsman from using his watchdog powers over the scandal-plagued air ambulance agency, the Star has learned.

The minority Liberal government’s proposed Bill 50 also prevents citizens from making freedom-of-information requests about the inner workings at ORNGE, where disgraced former chief executive Dr. Chris Mazza once earned $1.4 million a year.

Opposition parties said Thursday the exclusions make a mockery of talk about bringing more transparency to the air ambulance service, which gets $150 million a year from taxpayers and is under police investigation for financial irregularities.

Aside from financial issues such as executive pay and perks like taxpayer-funded MBA degrees, concerns have been raised in the past about ORNGE’s policies for launching air ambulances in time to make a difference in life-and-death situations like serious car crashes.

The government will have to explain its rationale for keeping Marin out of the picture because he has already probed the land ambulance system, said Progressive Conservative MPP Frank Klees.

“It will be difficult for them to try to justify not giving him oversight,” added Klees, who has led his party’s attacks on ORNGE.

“Why they’d try to cover this one, I don’t know.”

Health Minister Deb Matthews wouldn’t give a specific rationale for not including ombudsman oversight and freedom-of-information requests in the recently introduced bill.

But she said it “provides a lot more oversight” than a previous agreement ORNGE had with the government, under which the air ambulance service set up a complex web of for-profit companies leveraged off tax dollars.

Those for-profit companies are being wound down as a result of a forensic audit of ORNGE, with Ontario Provincial Police now probing a number of financial arrangements at the agency whose entire board of directors was replaced at Christmas time.

Matthews urged opposition parties to allow the bill to proceed through the legislature to second reading, so it can go to a committee of MPPs for further study.

“If they have ideas on how to make it better, then let’s get it on to committee and we can have that conversation,” she told the Star in an interview Thursday.

Both the Tories and NDP said they will be pushing amendments to ensure ombudsman oversight and freedom-of-information requests.

“You want transparency? Give us ombudsman oversight and give us FOI at a minimum,” said Gélinas.

Klees said that since Marin has previously probed the land ambulance system “it’s just a natural he’d have access to this … we’re going to insist on that.”

Marin’s office declined to comment.

The ombudsman, who’s done a wide-ranging series of investigations into provincial services such as police and cancer drug coverage, has lobbied for wider powers because his office does not have jurisdiction over the so-called MUSH sector — municipalities, universities, schools and hospitals — but is allowed oversight over hundreds of other government agencies, boards and commissions.

Opposition parties kept up pressure on the government Thursday for the establishment of a select committee of the legislature to probe ORNGE, instead of the current Wednesday-only hearings before the public accounts committee.

Klees wants the committee to sit at least two days at week, and during break weeks as well as throughout the summer when the legislature isn’t sitting, to wade through a list of witnesses including Mazza.

The former emergency room doctor has been served with a speaker’s warrant to appear for questioning by MPPs at the public accounts committee May 16.

Klees said the warrant was issued because Mazza, who also got hundreds of thousands of dollars in loans from ORNGE to buy an Etobicoke home recently sold, has turned down previous requests to appear.

If Mazza keeps refusing to appear, the ultimate penalty could be imprisonment and “I don’t think anybody wants to see that,” Klees added.

An Act to amend the Ambulance Act with respect to air ambulance services

Note: This Act amends the Ambulance Act. For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. Subsection 1 (1) of the Ambulance Act is amended by adding the following definitions:

“board of directors”, with regard to a designated air ambulance service provider, means the board of directors or other governing body, however described or constituted; (“conseil d’administration”)

“designated air ambulance service provider” means a person,

(a) that is designated in the regulations, and

(b) at the time of designation holds a certificate under section 8 that refers to the provision of air ambulance services; (“fournisseur désigné de services d’ambulance aériens”)

2. (1) The Act is amended by adding the following Part:

pART IV.2 Designated AIR AMBULANCE SERVICE PROVIDERS

Appointment to board of directors

7.1 (1) On the recommendation of the Minister, and despite the Corporations Act or any other Act or law, the Lieutenant Governor in Council may appoint one or more provincial representatives to sit on the board of directors of a designated air ambulance service provider.

Rights and responsibilities

(2) Unless otherwise provided in his or her instrument of appointment or in the regulations, a provincial representative appointed under subsection (1) has the same rights and responsibilities as an elected member of the board of directors.

Directives by Minister

7.2 (1) The Minister may issue directives to a designated air ambulance service provider where the Minister considers it to be in the public interest to do so.

Directives to be followed

(2) A designated air ambulance service provider shall carry out every directive of the Minister.

Deemed provisions

7.3 The regulations may provide for one or more provisions that are deemed to be included in an agreement between Ontario and a designated air ambulance service provider, whether the agreement was entered into before or after the regulation was made and, where the regulations so provide, the provision or provisions are deemed to be part of the agreement for all purposes.

Special investigators

7.4 (1) Where the Lieutenant Governor in Council considers it in the public interest to do so, the Lieutenant Governor in Council may appoint one or more persons as special investigators to investigate and report on,

(a) the quality of the administration and management of a designated air ambulance service provider;

(b) the quality of the care and treatment provided by a designated air ambulance service provider;

(c) the services provided by a designated air ambulance service provider; or

(d) any other matter relating to a designated air ambulance service provider.

Powers

(2) A special investigator appointed under this section,

(a) has the powers of an investigator for the purposes of section 18 and any other provision of this Act and the regulations, and may exercise those powers in connection with all aspects of the operation of a designated air ambulance service provider; and

(b) has any additional powers and duties provided for in the regulations.

Obstruction

(3) No person shall obstruct a special investigator or withhold or destroy, conceal or refuse to furnish any information or thing required by the special investigator for the purposes of the investigation.

Report

(4) Upon completion of an investigation, a special investigator shall make a report in writing to the Minister.

Delivery of report

(5) The Minister shall cause a copy of the report of an investigation to be delivered to the chair of the board of directors of the designated air ambulance service provider.

Air ambulance supervisor

7.5 (1) On the recommendation of the Minister, the Lieutenant Governor in Council may appoint a person to be the supervisor of a designated air ambulance service provider where the Lieutenant Governor in Council considers it in the public interest to do so.

Notice of appointment

(2) The Minister shall give the board of directors of a designated air ambulance service provider at least 14 days notice before recommending to the Lieutenant Governor in Council that a supervisor be appointed.

Immediate appointment if no quorum

(3) Subsection (2) does not apply if there are not enough members on the board of directors of a designated air ambulance service provider to form a quorum.

Immediate appointment in urgent circumstances

(4) Subsection (2) does not apply where the Minister is of the opinion that it is not appropriate to provide notice under that subsection in light of a serious risk to patient safety or other urgent concern related to the designated air ambulance service provider.

Term of office

(5) The appointment of a supervisor is valid until terminated by order of the Lieutenant Governor in Council.

Powers of supervisor

(6) Unless the appointment provides otherwise, a supervisor has the exclusive right to exercise all of the powers of the board of directors of the designated air ambulance service provider and, where the designated air ambulance service provider is a corporation, of the corporation, its officers and members of the corporation.

Same

(7) The Lieutenant Governor in Council may specify the powers and duties of a supervisor appointed under this section and may provide for the terms and conditions governing those powers and duties.

Additional powers of supervisor

(8) If, under the order of the Lieutenant Governor in Council, the board of directors of a designated air ambulance service provider continues to have the right to act with regard to any matters, any such act of the board of directors is valid only if approved in writing by the supervisor.

Right of access

(9) A supervisor has the same rights as the board of directors and the officers of the designated air ambulance service provider in respect of the documents, records and information of the board of directors and the designated air ambulance service provider.

Report to Minister

(10) A supervisor shall report to the Minister as required by the Minister.

Minister’s directives

(11) The Minister may issue directives to a supervisor with regard to any matter within the jurisdiction of the supervisor.

Directives to be followed

(12) A supervisor shall carry out every directive of the Minister.

Public interest

7.6 In making a decision in the public interest under this Part, the Lieutenant Governor in Council or the Minister, as the case may be, may consider any matter they regard as relevant, including, without limiting the generality of the foregoing,

(a) the quality of the administration and management of the designated air ambulance service provider;

(b) the proper management of the health care system in general;

(c) the availability of financial resources for the management of the health care system and for the delivery of air ambulance services;

(d) the accessibility of air ambulance services in the Province; and

(e) the quality of the care and treatment provided by the designated air ambulance service provider.

Whistle-blowing protection

7.7 (1) No person shall retaliate against another person, whether by action or omission, or threaten to do so because,

(a) anything has been disclosed to an inspector, investigator or special investigator in connection with a designated air ambulance service provider;

(b) anything has been disclosed to the Ministry in connection with a designated air ambulance service provider including, without limiting the generality of the foregoing,

(i) if the Ministry has been advised of a breach of a requirement under this Act in connection with a designated air ambulance service provider,

(ii) if the Ministry has been advised of any matter concerning patient care provided by a designated air ambulance service provider that the person advising believes ought to be reported to the Ministry, or

(iii) if the Ministry has been advised of any other matter concerning the operation of a designated air ambulance service provider that the person advising believes ought to be reported to the Ministry; or

(c) evidence relating to a designated air ambulance service provider has been or may be given in a proceeding, including a proceeding in respect of the enforcement of this Act or the regulations, or in an inquest under the Coroners Act.

Interpretation, retaliate

(2) Without in any way restricting the meaning of the word “retaliate”, the following constitute retaliation for the purposes of subsection (1):

1. Dismissing a staff member.

2. Disciplining or suspending a staff member.

3. Imposing a penalty upon any person.

4. Intimidating, coercing or harassing any person.

May not discourage reporting

(3) None of the following persons shall do anything that discourages, is aimed at discouraging or that has the effect of discouraging a person from doing anything mentioned in clauses (1) (a) to (c):

1. A designated air ambulance service provider.

2. If the designated air ambulance service provider is a corporation, an officer or director of the corporation.

3. A staff member of a designated air ambulance service provider.

May not encourage failure to report

(4) No person mentioned in paragraphs 1 to 3 of subsection (3) shall do anything to encourage a person to fail to do anything mentioned in clauses (1) (a) to (c).

Protection from legal action

(5) No action or other proceeding shall be commenced against any person for doing anything mentioned in clauses (1) (a) to (c) unless the person acted maliciously or in bad faith.

(2) Subsection 7.1 (1) of the Act, as enacted by subsection (1), is amended by striking out “Corporations Act” and substituting “Not-for-Profit Corporations Act, 2010”.

3. The Act is amended by adding the following section:

Certain continued bodies

20. (1) Where a provider of air ambulance services that is a body corporate incorporated under the laws of any jurisdiction other than Ontario is continued as a corporation under the Corporations Act, the following shall apply to the continued body corporate (the “continued corporation”) from the date of continuance:

1. The property of the body corporate continues to be the property of the continued corporation.

2. The continued corporation continues to be liable for the obligations of the body corporate.

3. An existing cause of action, claim or liability to prosecution is unaffected.

4. Any civil, criminal, administrative, investigative or other action or proceeding pending by or against the body corporate may be continued by or against the continued corporation.

5. Any conviction against, or ruling, order or judgment in favour of or against the body corporate may be enforced by or against the continued corporation.

Same

(2) Nothing in subsection (1) derogates from the application of section 314 of the Corporations Act or from the application of any other provision of that Act.

4. Subsection 22 (1) of the Act is amended by adding the following clauses:

(b.1) designating persons for the purposes of clause (a) of the definition of “designated air ambulance service provider” in subsection 1 (1);

(b.2) respecting the powers and duties of special investigators in connection with designated air ambulance service providers, including providing for additional powers and duties;

(b.3) respecting and governing provisions that are to be deemed to be included in an agreement between Ontario and a designated air ambulance service provider;

(b.4) respecting the appointment and the rights and responsibilities of provincial representatives appointed under section 7.1;

(b.5) respecting performance standards and performance measures for designated air ambulance service providers and requiring compliance with those standards and performance measures;

(b.6) requiring designated air ambulance service providers to enact by-laws and respecting the content of the by-laws of designated air ambulance service providers;

(b.7) respecting provisions to be contained in the articles or letters patent of a designated air ambulance service provider that has Ontario articles, letters patent or letters patent of continuance, and requiring designated air ambulance service providers to include such provisions in their articles or letters patent;

(b.8) respecting the governance and management of designated air ambulance service providers;

5. (1) Subsection 23 (2) of the Act is amended by striking out “an inspector or investigator” and substituting “an inspector or investigator or a special investigator”.

(2) Subsection 23 (3) of the Act is amended by striking out “an inspector or investigator” and substituting “an inspector or investigator or a special investigator”.

6. The Act is amended by adding the following section:

Protection from liability, etc.

25. (1) No proceeding, other than a proceeding referred to in subsection (3), shall be commenced against the Crown or the Minister with respect to anything done by the Lieutenant Governor in Council or the Minister regarding,

(a) a directive under section 7.2;

(b) the appointment of a special investigator or a supervisor under section 7.4 or 7.5;

(c) a directive or a decision under section 7.5; or

(d) any action or omission of a special investigator or supervisor done in good faith in the performance of a power or of an authority under Part IV.2.

Protection from personal liability

(2) No action or other proceeding for damages or otherwise shall be instituted against any of the following persons for any act done in good faith in the execution or intended execution of any duty or authority under this Act or the regulations or for any alleged neglect or default in the execution in good faith of any such duty or authority:

1. A special investigator or a supervisor appointed under section 7.4 or 7.5.

2. The staff of anyone mentioned in paragraph 1.

Crown not relieved of liability

(3) Subsection (1) does not, by reason of subsections 5 (2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect of a tort committed by a person mentioned in paragraphs 1 and 2 of subsection (2) to which the Crown would otherwise be subject and the Crown is liable under that Act for any such tort in the same manner as if subsection (2) had not been enacted.

Commencement

7. (1) Subject to subsection (2), this Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

(2) Subsection 2 (2) comes into force on the later of the day subsection 2 (1) comes into force and the day subsection 211 (1) of the Not-for-Profit Corporations Act, 2010 comes into force.

Short title

8. The short title of this Act is the Ambulance Amendment Act (Air Ambulances), 2012.

EXPLANATORY NOTE

The Ambulance Act is amended to allow providers of air ambulance services to be designated as “designated air ambulance service providers”.

The Lieutenant Governor in Council is given the power to appoint provincial representatives to sit on the board of a designated air ambulance service provider, and the Minister is given the power to issue directives to designated air ambulance service providers.

The regulations may deem certain provisions to be included in an agreement between Ontario and a designated air ambulance service provider.

The Lieutenant Governor in Council may appoint special investigators to investigate and report on the activities of a designated air ambulance service provider, and may appoint a supervisor to exercise all of the powers of the board of directors of a designated air ambulance service provider.

Protection is provided for whistle-blowers with regard to designated air ambulance service providers.

Provision is made for the continuance of providers of air ambulance services that were incorporated in a jurisdiction other than Ontario.

Provisions are made to protect certain parties from liability.

Related amendments are made to the offence provisions and regulation-making powers of the Act.